Single-Publication Rule Receives Double Protection

Two recent rulings have strengthened states’ single-publication rules, which require defamation lawsuits to be brought within a specific length of time

From the Spring 2004 issue of The News Media & The Law, page 19.

By Kirsten Murphy

On Sept. 7, 2000, The Atlanta Journal-Constitution published an article about a controversy surrounding a local social club for the overweight. According to the group’s Web site, “Hipsters” was created to “provide social gatherings that included size-positive spectacles for persons of size, and those who support them, in the form of an atmosphere conducive to interaction and camaraderie — usually including a bar, music and dancing.”

The controversy involved one such get-together, a lingerie show featuring plus-sized models.

Photographs of the models, along with an article about the club written under a pseudonym by Hipsters founder Scott McCandliss, appeared in an adult magazine called Plumpers and Big Women. One of the models later sued McCandliss for submitting her photograph to the magazine without her consent.

The Journal-Constitution article about the lawsuit noted that McCandliss wrote the article and stated, “The Hipster party in metro Atlanta was noted on the cover of ‘Plumpers and Big Women’: ‘Five thousand pounds of Sex-Starved Fatties.’ ” A similar sentence appeared in a follow-up article on Nov. 7, 2000. Both stories were archived on the newspaper’s Web site.

Exactly two years from the date of the follow-up article, McCandliss filed suit against Cox Enterprises, owner of the Journal-Constitution, claiming that the newspaper improperly attributed the caption on the cover of Plumpers to Hipsters organizers. The Journal-Constitution, McCandliss alleged, libeled him, placed him in a false light and negligently failed to verify its facts.

A trial court dismissed the case under the state’s statute of limitations, and on Jan. 8, 2004, the Georgia Court of Appeals affirmed that decision, holding that the “single-publication rule” applies to Internet postings. The rule, a legal protection that is applied in defamation cases, is critical to shielding publishers from endless liability for each instance that an article or book is sold or distributed, the court said.

Although the single-publication rule has existed since the 1940s, the state appellate court decision is believed to be the first application of the law to an online publication. As such, the free exchange of archived and easily retrievable ideas — of intrinsic importance to the Internet — has gained valuable protection against unwarranted liabilities.

The Single-Publication Rule

Under English Common Law, every sale and distribution of a publication was a separate publication of statements, and a plaintiff could sue for defamation over any of them. Many states, including Georgia, have statutes that altered this harsh law in favor of the single-publication rule. Under the rule, a publisher can only be sued for libel over the original publishing of text, not the subsequent distribution or additional printings of the same text.

The purpose of the rule is to protect publishers against multiple lawsuits over the same libelous statement. It also safeguards publishers against endless liability, despite the statute of limitations. The rule requires that plaintiffs either bring their claims within a certain period of time after the publication of the allegedly defamatory material — one or two years is typical — or forfeit their rights.

In the Atlanta case, McCandliss argued that even though he brought his libel claim more than two years after the articles appeared in the newspaper, he had not missed the one-year deadline under the statute of limitations because the articles were posted on the Journal-Constitution‘s Web site, ajc.com. Every “hit” or viewing of the online articles, he said, constituted a new publication of the defamatory statements.

McCandliss argued that because a Web site may be altered at any time by its editor or publisher, and because publications on the Internet are available only to those who seek them out, each viewing of the article should be considered a new publication that re-triggers the statute of limitations.

The Georgia Court of Appeals, in an opinion written by Judge G. Allen Blackburn, disagreed.

“A multiple publication rule would implicate an even greater potential for endless re-triggering of the statute of limitations, multiplicity of suits and harassment of defendants,” Blackburn wrote. “Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its greatest beneficial promise.”

Timing is of the Essence

A recent case in California illustrates the value of the single-publication rule, and how courts are steadfastly protecting the free-speech rights of those who publish and write, no matter the medium.

Shively v. Bozanich was brought in May 1997 by Jill Shively, a witness for the prosecution in a grand jury proceeding seeking the indictment of O.J. Simpson for the murder of his estranged wife, Nicole Brown Simpson, and her friend, Ronald Goldman. Shively filed suit against a deputy district attorney in the Los Angeles County District Attorney’s Office and the County of Los Angeles, then filed a second suit in October of that year against her ex-boyfriend and an author of a book about the Simpson criminal case.

Shively alleged that she had been defamed on three separate occasions. The first occasion, she argued, was in June 1994, when her ex-boyfriend, Brian Patrick Clarke, described her as “a felony probationer” to Los Angeles County Deputy District Attorney Peter Bozanich and his wife. The second occasion occurred in 1996, according to her complaint, when Bozanich repeated the statement to author Joseph Bosco. The third instance was in December 1996, when Bosco published a book titled “A Problem of Evidence,” which recounted the statements made by Clarke and Bozanich.

The book, published in October 1996, states that Shively’s status as a felony probationer — a person who is on probation for committing a crime — was the reason she was not called to testify as a witness in Simpson’s trial.

Shively claimed in her libel suits that she did not know about the statements until she read them in Bosco’s book in December 1996.

Under the California statute of limitations’ provisions regarding public entities and employees, however, Shively had six months after the defamation occurred to file her claim against the county and Bozanich. The law allows one year to file a claim against private citizens. As a result, Bosco and his publisher, William Morrow & Co., were dismissed from the case before it reached the state Supreme Court.

In reversing the state Court of Appeals decision to keep Shively’s claims alive under the “delayed discovery rule” — allowing the statute of limitations to begin when one first learns of the allegedly defamatory statements — the California Supreme Court said in December, “the statute of limitations ran from the date the book was first generally distributed to the public, regardless of the date on which plaintiff actually learned of the existence of the book and read its contents.” Thus, Shively’s claims based on statements contained within the book were barred.

The court considered the policy behind the single-publication rule, which is to ensure that defendants are not subject to endless liability, thereby protecting the “ability and willingness of publishers to report freely on the news and on matters of public interest,” the court wrote.

The delayed discovery rule, the court further held, is meant to apply in cases in which it is difficult for a plaintiff to learn of or understand the injury suffered, or when the injury or the cause of injury is hidden. Application of the delayed discovery rule to Shively’s case would defeat the very purpose of single-publication, the court held.

Of course, the ultimate benefit of the rule is its practical effect. Attorney Peter Canfield, who practices media law at Dow, Lohnes & Albertson in Atlanta, says the rule is helpful because it creates a “bright line as to when a suit can be filed.”

“For that reason,” Canfield said, “if the plaintiff missed the statute it is an effective means of getting the case dismissed.”